Riparian Water Rights

The English common law of riparian rights was forged in a humid environment with numerous streams and abundant rainfall. A riparian right accrues to a person who owns the bank of a stream and has access to water by virtue of that position. Riparian owners were entitled to equal shares of whatever water they needed for "natural uses." They did not enjoy a similar right for artificial uses. The artificial, or extraordinary, uses differed from the natural ones in about the same way as desired uses differed from absolute necessity. Farmers had to have water to drink and for domestic stock, but other competing users wanted water for the purposes of manufacturing and mining. The English common law doctrine of natural flow severely restricted the amount of water that a riparian proprietor could take for such artificial purposes.

In the antebellum era the doctrine of natural flow came under attack in two ways. First, in the states east of the Mississippi River, where water was abundant, judges applied the reasonableness and balancing test to reduce the restrictions on artificial uses. Their decisions worked to the benefit of certain business users, such as textile producers, who needed large amounts of falling water to power their factories. This new emphasis in the law hurt old-mill operators, who found the flow of water reduced, and farmers, whose lands were often flooded as a result of the increasingly tall dams needed to back up ever larger amounts of water. Second, as the nation expanded beyond the Mississippi, the requirements of irrigation and mining forced a reversal in thinking about what, in an and climate, constituted an artificial use.

Typical of developments in the East was the New York Supreme Court's decision in Palmer v. Mulligan ( 1805). A closely divided court held for the first time that an upstream owner could dam up water for mill purposes, even though he had failed to establish a prescriptive right to do so and his actions caused "little inconveniences" to other owners. Under the then existing doctrine of priority and prescription, courts had previously held that a blockage in the flow of water had to be long-standing (usually twenty years) in order to enjoy common law protection. The majority offered an explicit policy basis to justify its action. Judge Brockholst Livingston observed that without such a rule "the public, whose advantage is always to be regarded, would be deprived of the benefits which always attend competition and rivalry." ³² The rights of private property holders had to be balanced against the rights of the public to improve facilities created through competition. Palmer v. Mulligan began a long line of cases in which U.S. judges accepted the idea that the ownership of property implied the right to develop that property for business rather than natural, agricultural uses.

The antidevelopmental doctrine of natural flow declined gradually. There was strong opposition to Mulligan, as the sharply divided court that decided it suggests. Even in the 1820s several state appellate courts in the East refused to extend riparian rights to mill and factory owners on an unlimited basis, clinging instead to priority and prescription. Joseph Angell in 1824 lent support to their action in Watercourses, the leading antebellum treatise on riparian rights. Angell denounced the New York decision as "contrary to authorities and obviously unjust." ³³ He asserted the traditional common law, based on the doctrine of natural flow, that the only test for the use of water by an upstream owner was the absence of all but the most trivial injury to those living downstream.

The utilitarian position eventually prevailed, and Chief Justice Lemuel Shaw was

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its principal architect. Massachusetts depended heavily on the cotton textile business, and cotton factories required larger and higher dams than those erected to process grain. Between 1820 and 1830, for example, the productive capacity of all mills in New England expanded by more than 60 percent.

The legal and economic issues that came to Shaw's court were intertwined. The size of the new mills was such that they often interfered with existing mill owners who claimed a prescriptive right over the water's flow. If these prescriptive rights stood, existing mill operators would have had a virtual state-sanctioned monopoly over the water's use. Such a monopoly stymied the introduction of new and more powerful mills that depended for their successful operation on an ever-greater diversion of water. The question presented was not just whether the builders of a new and technologically more advanced cotton mill could interfere with the natural flow for an artificial purpose, but whether in doing so they could diminish the monopoly rights of existing mill operators for the benefit of the entire community.

Shaw's opinion in Cary v. Daniels ( 1844) invoked the rights of the public and limited private property rights. The case involved a new cotton mill that significantly diverted water from existing users. Shaw shifted the test away from the injury done to them and toward what he called "the usages and wants of the community." "One of the beneficial uses of a watercourse," he explained, "and in this country one of the most important, is its application to the working of mills and machinery; a use profitable to the owner, and beneficial to the public."³⁴ The state could not stand in the way of progress. Some existing property holders had to suffer losses without a legal remedy in order that the community as a whole could benefit.

Judicially enforced riparian rights west of the Mississippi River were also utilitarian, pragmatic, and prodevelopmental. Much of the legal development of riparian property law in the West occurred after the Civil War as the pace of settlement quickened. But as early as the 1850s the issues were drawn as settlers moved into semiarid and arid regions. Economic expansion into the Southwest encouraged the Anglo-American values of predictability and individualism, values that collided with the already well-established Spanish civil law tradition of placing communal over individual needs. The common law not only overwhelmed the civil law but it also changed itself to accommodate the new environmental circumstances. The traditional common law rule of equal apportionment among all riparian owners led to grave consequences in much of the West because water was insufficient to divide equally among all users. Furthermore, according to traditional property doctrine, a riparian owner was one who actually owned land fronting on a watercourse. If this practice had been followed in the West, landowners who lived far from the source would have been denied water for irrigation and mining.

The western states and territories organized before the Civil War received the existing common law. Eastern legal principles quickly broke down in the West, even in Texas and along the Pacific slope where the climate was more humid than on the Great Plains. Western appellate judges replaced the doctrine of natural flow, which was already crumbling before the demands of manufacturers in the humid East. These judges realized that the climate and geography of the West made the doctrine of prior appropriation (first come, first served) a necessary legal innovation. An individual who got to the water first, no matter that he was not a riparian owner, had priority before all

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others to the amount of water he had first appropriated, whether for irrigation or mining. In most western states, appropriative water rights were regarded as a class of property that could be sold in whole or in part.

This new judicial formulation of riparian rights had grassroots support. In California, for example, extralegal miners' clubs devised codes that established the doctrine of prior appropriation. The California Supreme Court subsequently ratified it. In the 1855 case of Irwin v. Phillips the high court ruled, in one of its earliest decisions on resource law, that "[c]ourts are bound to take notice of the political and social condition of the country, which they judicially rule." ³⁵ As in the East, the judicial interpretation of early riparian rights in the West was pragmatic and intended to hasten economic development. The pursuit of wealth and enterprise took precedence over equity. Geography and climate might alter the substance of the law, but judges kept it resonant with developmental economic purposes. The western doctrine of prior appropriation "encouraged entrepreneurs to scramble for water, quickly construct works, and apply the asset to the industry of the region." ³⁶

Date: 2015-01-29; view: 694